End User Licence Agreement (EULA) Software

Valid from 31.03.2019

German Version: EULA - DE

Preamble

This agreement applies for the use of all software (the "product") sold by Schütze AG, Knesebeckstraße 1, 10623 Berlin ("we“) through the Atlassian Marketplace (the "platform"). These conditions apply in addition to the Atlassian Marketplace terms of use between us and the buyer (the "user").

§ 1 General

These conditions solely apply to the use of the product, differing terms or conditions may only become part of the contract with our explicit consent.

These conditions apply for all use of the product, regardless of whether the product is used on the platform or is used after a download and installation process on the users own or third party’s devices or servers. Reference is made to § 4 of this agreement.

§ 2 Product

The product is described on the platform in the usual manner. Additionally and prior to the conclusion of a contract for the use of the product the user can view information about the product such as: the (technical) specifications; possible product reviews; installation instructions and user manuals. The user will be informed about usage fees within the product description (see § 5). Further information on other potential services offered by us related to the product such as additional support or consulting services may also be available. Additional remuneration for such further services may be required in addition to the remuneration for the use of the product itself. Potential additional fees require an additional agreement between us and the user.

Adjustments and improvements to the product (in the form of product updates) can be made throughout the term of the agreement at our sole discretion. Through this contract the user acquires a subscription to usage rights for the current version of product and access to updates for the duration of the contract term (see § 4).

The product description will inform the user about any specific system requirements for the use of the product. The fulfilment of the system requirements in the user’s IT infrastructure is mandatory for the use of the product.

§ 3 Conclusion of Contract

A contract for the use of the product is concluded solely between the user and us. It may be a requirement that, prior to the use of the product an additional contract for the use of the platform and/or further software usage agreements with the platform operator or third parties are concluded. We are not the user’s contractual partner for such agreements. To the extent that we offer support and services regarding the use of the platform or third party software an additional agreement must be entered into. We will inform the user about the terms and conditions of any such agreements prior to the conclusion of a separate contract.

After the choice of the product the contract between the user and us is only concluded when the user submits the purchase order request for a license („Apply license“) and receives a confirmation. The contract details are determined by the product details in the product description at the time of this event on the platform (please also refer to § 2 and § 4), the same applies for the pricing (see § 5).

§ 4 Specifications and Transfer of Rights

We shall provide the product in accordance with the specifications in the product description on the platform at the time of conclusion of the contract. Furthermore, the product must meet the conditions to be expected according to this agreement and to the extent that is standard for similar software.

We transfer a non-exclusive right to use the product, limited to the contract term, locally unlimited, and limited to the number of licenses purchased to the user. This usage right extends to all changes, amendments and updates of the product during the full contract term.

A resale of the license is prohibited. Sublicences may not be granted by the user. Changes to the product that exceed necessary changes for the use of the product according to these regulations are prohibited. This does not apply if such actions are mandatory for the use of the product. Decompilation, reverse-engineering as well as the unauthorised integration into other software or products/product bundles are expressly prohibited. 

Replication of the software through installation are only permitted to the extent necessary for the use and the installation of the product for the number of licenses purchased by the user. We grant the right to register the same number of accounts as per the licenses purchased on the production server for the product. The registration of further accounts, above the licence limit, will require an additional purchase of usage rights/licences for the product.

We reserve the right to end the use of the product from our side when the contract term ends (§ 7) and/or if the user does not pay for the appropriate product usage licence. This may be achieved through a withdrawal of the license(s), the cancellation of accounts, terminating access to updates and/or the termination of customer support for this user.

We assure that the product is free of third party rights. We release the user from third party claims due to rights violations by the product if the user informs us about such violations and claims without undue delay.

The user must take suitable measures to prevent unauthorised use of the product.

§ 5 Pricing

The user must pay the license fee according to the choices made during the purchasing and installation procedures. The license fee corresponds to the number of licenses and the duration of the contract term.

The processing of license fees and payments occurs through the platform operator. Reference is made to the terms and conditions of the platform operator.

§ 6 Warranty and Liability

The product must meet the requirements according to the regulations in § 2 and § 4 sec. 1. Furthermore, the statutory warranty rules apply. Users that are merchants under the German Commercial Code (HGB) and insofar the rules about the commercial transactions apply must follow their duty of inspection and objection according to § 377 HGB in the case of defects.

To the extent we provide further services in addition to the product usage (rights) to the user our terms and conditions for the corresponding service(s) apply additionally. We will provide these terms and conditions to the user prior to the conclusion of a contract for such services.

We are fully liable for any damages based on malice or gross negligence on our part or by our legal representatives or agents. We are also fully liable for damages resulting from injuries to life, body or health resulting from negligent breaches of duties on our part or breaches of duties based on malice or negligence of our legal representatives or agents. If our breach of a cardinal duty is found to be neither malicious nor gross negligence our liability is limited to the restitution of any foreseeable damages that typically arise. The liability for data loss is limited to the typical expenses for recovery that would occur assuming data backups are made regularly and to the extent that is adequate to mitigate this danger. The user shall make data backups at regular intervals with due regard to the damages in case of data losses.

In due consideration of the above regulations a liability for damages regardless of culpability is excluded for preexisting defects at the time of the entering into the contract.

Liabilities according to the German Product Liability Act (Produkthaftungsgesetz) remain unaffected.

In all other cases our liability is excluded.

§ 7 Duration and Termination

The contract term is determined by the user’s choice during the purchasing and installation procedure, however, the regular duration is twelve months. The user will be informed about the contract term within the installation procedure (subscription). The user has the option to choose a longer contract term beyond the regular twelve months. In any case the user must purchase an extension prior to the end of the chosen term of the subscription. If no extension is purchased the usage right will have the same end date as the contract term, which will also result in ending the functionality of the product. Reference is made to the consequences described in § 4 sec. 5.

If a free trial period is offered the user will also be informed about its beginning and its end date. If no subscription is made prior to the end date the regulations in sec. 1 above apply accordingly.

The right to extraordinary termination remains unaffected for both parties.

After the end of the contract term the user must disable, uninstall and/or delete or return all copies and components (including manual etc.) of the product from their systems or those of their agents.

§ 8 Data Protection

The platform operator will collect, store and process user data for the purpose of the contract. This data will be at least partly transferred to us and we will make use of it in fulfilment of the contract. We make explicit reference to the Privacy Policy of the platform operator that applies in this case.

§ 9 Final Provisions

This agreement shall be exclusively governed by the laws of the Federal Republic of Germany The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

If the user is a merchant, a corporate entity under the public law or a special fund under public law for all disputes resulting from this agreement the place of jurisdiction shall be Berlin. However, we are entitled to choose the user’s place of business as the place of jurisdiction.

All amendments and modifications of this agreement must be made in text format.

In the event that any provision in this agreement is or becomes invalid the validity of the remainder of these regulations shall be unaffected.